SIU Director’s Report - Case # 23-OCI-006
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section 14 (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:- Confidential investigative techniques and procedures used by law enforcement agencies; and
- Information that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- Location information;
- Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and
- Other identifiers which are likely to reveal personal information about individuals involved in the investigation.
Personal Health Information Protection Act, 2004
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.Mandate Engaged
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injuries of a 43-year-old man (the “Complainant”).
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injuries of a 43-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On December 29, 2022, at 1:33 p.m., the Complainant left a voice message on the SIU’s public telephone answering system. On December 29, 2022, at 1:45 p.m., the Complainant was contacted and provided the following information.On December 4, 2022, sometime in the evening hours, Niagara Regional Police Service (NRPS) officers attended the Complainant’s residence, as neighbours had complained he was listening to loud music in his garage. The Complainant was intoxicated and argued with the two responding police officers [one male and one female], whom he claimed were trespassing on his property. While inside his residence, the Complainant and the male police officer [the Subject Official (SO)] engaged in an altercation. The Complainant blacked out. When he awoke, he was handcuffed, his face was bloodied, and his home was in disarray. The Complainant was taken to the St. Catharines General Hospital by police officers. He refused medical treatment without the presence of his lawyer. The Complainant was subsequently discharged and transported to a NRPS station [Grimsby] where he was charged with ‘mischief’ and released via an undertaking. On December 5, 2022, the Complainant attended the Haldimand War Memorial Hospital [Dunnville], where he was diagnosed with a fractured nose.
The Team
Date and time team dispatched: 01/05/2023 at 12:18 p.m.Date and time SIU arrived on scene: 01/05/2023 at 2:25 p.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
43-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on January 6, 2023.
Subject Official
SO Interviewed, but declined to submit notes, as is the subject official’s legal right The subject official was interviewed on March 6, 2023.
Witness Officials
WO Interviewed The witness official was interviewed on January 12, 2023.
Evidence
The Scene
The events in question transpired in and around a residence at Silver Street, Regional Road 65, Caistor Centre.Video/Audio/Photographic Evidence [2]
911 Calls
On December 4, 2022, at 9:56 p.m., a neighbour called 911 to request police attendance at Regional Road 65, West Lincoln, about a noise complaint and verbal altercation.At 10:56 p.m., a second telephone call to 911 was made reporting that the police had already attended and spoken with the Complainant. The Complainant had turned up the music again. The caller asked the police to return. The 911 dispatcher confirmed they would return.
Radio Communications
The SO reported via radio broadcast that the Complainant was in custody. The Complainant was being transferred to NHS. A police officer subsequently broadcast that the Complainant had been released on an undertaking and would be transported home.
Video Footage - The Complainant’s Residence
On December 5, 2022, at 12:00:07 a.m. on the video, the footage opened with a view of the side porch. The Complainant stood on his porch and two uniformed police officers – the SO and the WO - stood at the bottom of the porch. The Complainant held something in his right hand while he pointed with his left hand. The SO climbed the three stairs to the top of the porch and argued with the Complainant. The Complainant stood with both hands on his hips as the SO moved to the rear of the Complainant and attempted to secure his arms. The Complainant leaned forward as the SO grabbed the Complainant’s shirt. The WO made her way up the steps and attempted to hold the Complainant as well.
The Complainant broke free and entered his residence, out of camera view. The police officers stood on the porch and the SO said, “Come outside.” The Complainant shouted, “What, are you scared now?” The two police officers entered the residence, out of camera view. Shouting could be heard from the residence; however, due to the poor audio quality, it was unclear what was said.
At 12:05:02 a.m., the Complainant was walked from the residence by the SO and the WO. He was handcuffed behind his back and had blood covering the right half of his face. The Complainant was escorted out of the lower right camera frame by the SO.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the NRPS between January 10 and January 12, 2023:- Computer-assisted dispatch record;
- Communications recordings;
- Prosecution Summary;
- Undertaking;
- Witness List; and
- Notes-WO.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- Video footage-the Complainant’s residence;
- The Complainant’s medical records from the Haldimand War Memorial Hospital; and
- Images provided by the Complainant.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and the SO, gives rise to the following scenario.
The SO, in the company of the WO, were dispatched to investigate a noise complaint on Regional Road 65, Caistor Centre, at about 10:00 p.m. Having spoken to neighbours across the road from the subject of the complaint, and satisfied that the loud music emanating from the open garage at that address was unduly disruptive, the officers made their way to the house.
The Complainant was present on the property as the officers arrived. He was intoxicated and greeted the officers with profanity. He told them to get off his property and refused to turn the music down, acknowledging that he was playing the music to annoy his neighbours. The officers eventually convinced the Complainant to close his garage door, which had the effect of muffling the music’s volume, whereupon they departed.
Minutes after, at about 10:56 p.m., a second 911 call was received by police complaining about the music coming from the Complainant’s home. He had opened his garage door again. The SO and the WO, who had parked up the road anticipating a return call to the address, made their way again to the residence.
The SO approached the Complainant and told him he would be arrested if he did not turn the music down. The Complainant indicated he would be raising the volume. While standing on a raised porch by the side of the house, the SO told the Complainant he was under arrest and took hold of him. The Complainant broke free of the officer and entered his residence. The SO told him to come out, and then entered the home when the Complainant refused to do so. The WO did the same.
Inside the house, the Complainant refused to surrender to arrest and resisted the officers’ efforts to take him into custody. The SO delivered two hand strikes to the Complainant’s face, followed by a third as the two were making their way down to the floor. On the ground, the Complainant refused to release his arms for a period, but his resistance was overcome in short order by the SO and the WO, who took control of his arms and handcuffed them behind the back.
The Complainant was taken to hospital following his arrest but refused treatment. He was subsequently released by the police.
On December 5, 2022, the Complainant attended hospital and was diagnosed with a broken nose and concussion.
The SO, in the company of the WO, were dispatched to investigate a noise complaint on Regional Road 65, Caistor Centre, at about 10:00 p.m. Having spoken to neighbours across the road from the subject of the complaint, and satisfied that the loud music emanating from the open garage at that address was unduly disruptive, the officers made their way to the house.
The Complainant was present on the property as the officers arrived. He was intoxicated and greeted the officers with profanity. He told them to get off his property and refused to turn the music down, acknowledging that he was playing the music to annoy his neighbours. The officers eventually convinced the Complainant to close his garage door, which had the effect of muffling the music’s volume, whereupon they departed.
Minutes after, at about 10:56 p.m., a second 911 call was received by police complaining about the music coming from the Complainant’s home. He had opened his garage door again. The SO and the WO, who had parked up the road anticipating a return call to the address, made their way again to the residence.
The SO approached the Complainant and told him he would be arrested if he did not turn the music down. The Complainant indicated he would be raising the volume. While standing on a raised porch by the side of the house, the SO told the Complainant he was under arrest and took hold of him. The Complainant broke free of the officer and entered his residence. The SO told him to come out, and then entered the home when the Complainant refused to do so. The WO did the same.
Inside the house, the Complainant refused to surrender to arrest and resisted the officers’ efforts to take him into custody. The SO delivered two hand strikes to the Complainant’s face, followed by a third as the two were making their way down to the floor. On the ground, the Complainant refused to release his arms for a period, but his resistance was overcome in short order by the SO and the WO, who took control of his arms and handcuffed them behind the back.
The Complainant was taken to hospital following his arrest but refused treatment. He was subsequently released by the police.
On December 5, 2022, the Complainant attended hospital and was diagnosed with a broken nose and concussion.
Relevant Legislation
Section 25(1), Criminal Code -- Protection of persons acting under authority
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,(b) as a peace officer or public officer,(c) in aid of a peace officer or public officer, or(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Section 430, Criminal Code -- Mischief
s.430 (1) Every one commits mischief who wilfully
(a) destroys or damages property;(b) renders property dangerous, useless, inoperative or ineffective;(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
Mischief in relation to computer data
(1.1) Everyone commits mischief who wilfully
(a) destroys or alters computer data;(b) renders computer data meaningless, useless or ineffective;(c) obstructs, interrupts or interferes with the lawful use of computer data; or(d) obstructs, interrupts or interferes with a person in the lawful use of computer data or denies access to computer data to a person who is entitled to access to it.
Punishment
(2) Every one who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life.
Punishment
(3) Every one who commits mischief in relation to property that is a testamentary instrument or the value of which exceeds five thousand dollars
(a) Is guilty of an indictable offence and liable to imprisonment for a term not exceeding then years, or(b) Is guilty of an offence punishable on summary conviction.
Idem
(4) Every one who commits mischief in relation to property, other than property described in subsection (3),
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or(b) is guilty of an offence punishable on summary conviction.
Analysis and Director's Decision
The Complainant was arrested by NRPS officers at his home on December 4, 2022. As he was subsequently diagnosed with a serious injury that could have been incurred in the course of his arrest, the SIU initiated an investigation naming one of the arresting officers – the SO – a subject official. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injury.
Under section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.
I am satisfied that the SO and the WO had lawful grounds to arrest the Complainant for mischief under section 430(4) of the Criminal Code. The officers had given him ample opportunity to turn the volume down on his music, and it had become apparent he was not going to do so. Moreover, the SO and the WO were within their rights in entering the Complainant’s home to complete the arrest process pursuant to the doctrine of hot pursuit. [3]
I am also satisfied that the force used by the SO in aid of the Complainant’s arrest, namely, three hand strikes and a forced grounding, was legally justified. The evidence indicates that the Complainant resisted his arrest inside the house by pushing, and pulling away from, the officers, delivering punches of his own at the SO. In the circumstances, the officer was entitled to resort to a measure of force to defend himself and subdue the Complainant. The punches he delivered were a commensurate and proportionate response to the punches aimed in his direction by the Complainant. And the takedown made sense as it would assist the officers in better managing the Complainant’s combativeness. No strikes of any kind were delivered following the takedown.
It remains unclear when precisely the Complainant sustained his injuries. There is evidence that he repeatedly banged his head against the Plexiglas partition inside the cruiser following his arrest, which might well be responsible for the broken nose and/or concussion. Be that as it may, as there are no reasonable grounds to believe that the SO comported himself unlawfully in his dealings with the Complainant, there is no basis for proceeding with criminal charges in this case against the officer. The file is closed.
Date: May 5, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Under section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.
I am satisfied that the SO and the WO had lawful grounds to arrest the Complainant for mischief under section 430(4) of the Criminal Code. The officers had given him ample opportunity to turn the volume down on his music, and it had become apparent he was not going to do so. Moreover, the SO and the WO were within their rights in entering the Complainant’s home to complete the arrest process pursuant to the doctrine of hot pursuit. [3]
I am also satisfied that the force used by the SO in aid of the Complainant’s arrest, namely, three hand strikes and a forced grounding, was legally justified. The evidence indicates that the Complainant resisted his arrest inside the house by pushing, and pulling away from, the officers, delivering punches of his own at the SO. In the circumstances, the officer was entitled to resort to a measure of force to defend himself and subdue the Complainant. The punches he delivered were a commensurate and proportionate response to the punches aimed in his direction by the Complainant. And the takedown made sense as it would assist the officers in better managing the Complainant’s combativeness. No strikes of any kind were delivered following the takedown.
It remains unclear when precisely the Complainant sustained his injuries. There is evidence that he repeatedly banged his head against the Plexiglas partition inside the cruiser following his arrest, which might well be responsible for the broken nose and/or concussion. Be that as it may, as there are no reasonable grounds to believe that the SO comported himself unlawfully in his dealings with the Complainant, there is no basis for proceeding with criminal charges in this case against the officer. The file is closed.
Date: May 5, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
- 3) Per R v Feeney, [1997] 2 SCR 13, police officers are generally prohibited from forcibly entering a dwelling-house to effect an otherwise lawful arrest without a warrant authorizing entry except in the case of exigent circumstances. One such exception is where the officer is in hot pursuit of an individual who has committed an indictable offence. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.